JAYAWARDENE, et al., Appellants, and WARNASURIYA Respondent

033-NLR-NLR-V-49-JAYAWARDENE-et-al.-Appellants-and-WARNASURIYA-Respondent.pdf


Jayawardene v. Wamasuriya.
97
1948Present: Dias and Basnayake JJ.
JAYAWARDENE, et al., Appellants, and WARNASURIYA,
, Respondent.
S. C. 241—D. C. TangaUa, 4,888.
Kidoi oommissum—Created by last will—Rule of interpretation—Confiding provi-sions—Intention of testator.
One Dona Johanna by her last will of 1874 devised her properties to hergrand-daughter Eliza and her husband David subject to the followingconditions :—
“ That during my lifetime I may possess according to pleasure ….and that after my demise my grand-daughter Eliza (provided she gets childrenand one of those children be living) and her husband David should inherit allmy said property, but in case the said Eliza be not blessed with any childrenor, after getting children, none of them should survive and she happens to die,then her husband David should inherit a first $ share of all the property whichthey inherited from me, and my brothers and sisters or their descendants shouldinherit the remaining shares.
That in case the said two persons, Eliza and David, be blessed with childrenand while such children are living both or one of them should die, my relationswill not be entitled to the above-mentioned § shares but the same should devolveon any one of the said two persons that may be living and their children.
That as the devolving according to the above devises of the property belong-ing to me is to occur only after and not until the demise of Eliza, none of theproperty may be mortgaged, sold, gifted or given away in any other mannerby the said Eliza or David, or be subject to the debt or writ of execution ofanybody, or be sold on such account during the lifetime of the said Eliza. ”
David died in 1895, and Eliza, for the payment of his debts, conveyed theproperty in question to the defendant’s predecessor in title in 1900, and possess-ion since then was with the defendants. Eliza died in 1933, and plaintiffswho are her children and grand-children, brought this action for declaration oftitle. Defendant contended that title vested in the plaintiffs on the deathof David and that he had acquired title by prescription.
Held, that on a proper construction of the will the property was not alienableduring the lifetime of Eliza and that the rights of the pliantiffs became vestedin them only on the death of Eliza.
Per Basnataie J.—The cardinal principal in construing a will is to ascertaintherefrom the true wishes of the testator and give effect to his intention, con-flicting provisions, if any, being reconciled as far as possible in accordancewith the true intent of the testator.
Saibo v. Jayawardene (1944) 46 N. L. it. 20, not followed.
Ap:
'PEAL from a judgment of the District Judge, Tangalla.
H. V. Perera, K.C., with K. Herat and J. M. Jayamanne, for plaintiffs,appellants.
N. E. Weerasooria, K.C., with Vernon Wijetunge, for defendant,respondent.
Cur. adv. mdt.
98
DIAS J.—Jayawardene v. Wamaauriya.
February 9, 1948. Dias J.—
This appeal truns on the construction of the last will, P 4, and thequestion whether the defendant has acquired title by prescription againstthe plaintiffs.
The lands in question were the property of one Dona. Johana EkanaikeLama Etani who by her last will P 4 of 1874 devised them to her onlygrand-daughter Eliza Weerasinghe Obeysekera and her husband DavidObeyesekera Mudaliyar of Tangalla. The plaintiffs are the children orgrand-children of Eliza. The defendant is claiming title through aconveyance D 1 of May 12, 1900, executed by Eliza for the payment ofthe debts of her husband David, and through deeds D 2 of 1919 andD 3 of 1932.
It is not in dispute that the defendant has been in exclusive and adversepossession since 1900, i.e., since the execution of the deed D 1. Hetherefore claims that he has acquired title by prescriptive possessionto these lands.
David Obeysekere died in the year 1895 and Eliza departed this lifeon August 29, 1933. This action was filed on February 10, 1943, that isto say, -within ten years of the death of Eliza (August 29, 1933). Theappellants contend that if on a proper construction of the will P 4 legaltitle vested in the plaintiffs only on the death of Eliza, the defendantcould not have acquired title by prescription. The appellant’ssubmission is that the title vested in them on August 29, 1933.
On the other, the defendant-respondent’s contention is that the titlevested in the plaintiffs on the death of David in 1895. If that is so it iscommon ground that the defendant’s claim is entitled to prevail.
It must be remembered that we are called upon to construe not adeed inter vivos but a last will. In the case of Dias v. Jansen1 it was-laid down by Pereira J., that no words expressed in a last will should betreated as superfluous if they could be given a meaning not inconsistent-with the avowed intentions of the testator. In Seneviratne v. Candappa-pulle2 Lascelles C.J. and Wood Renton J. stated: “It is well settledthat the general rules for the interpretation of wills are unsafe guides ;and that the only true criterion is the intention of the testator to begathered from the terms of the will and from the surrounding circum-' stances ”. In Jayawardene v. Jayasinghe3 Pereira and Ennis JJ. heldthat where the language of a will is not strictly grammatical, the meaningto be given to it should be consonant with what the context shows thetestator intended. In Fan Eyre v. The Public Trustee4 de Kretser andJayetileke JJ. said : “ The will must be construed as a whole andapparent contradictions must be reconciled if possible. If that cannotbe done, then only will a later provision prevail. But the main thingis to get at the intention of the testator from the whole will. If authoritybe needed for this well-known proposition, I would refer to Burrows onthe Interpretation of Documents, p. 71. Beale’s Cardinal Rules of Legal-Interpretation, p. 607, gives many interesting dicta, e.g., The paramountrule is that before all things we must look for the intention of the testator
{1913) 16 N. L. It. 502.{1912) 16 N. L. R. 151.
(1911) 18 N. L. R. 91.
(1944) 46 N. L. R. 61.
DIAS J.—Jayawardene v. Wamasuriya.
99
as we find it expressed and clearly implied in the general terms of the■will; and when we have found that on evidence satisfactory in kindand degree, to that we must sacrifice the inconsistent clause or words,whether standing first or last, indifferently’ per Coleridge J. in MorraXL v.Sutton1
I have cited these authorities at some length because this will has comebefore this Court on two previous occasions for interpretation. In theunreported case, 24 C. R. Tangalla, 16,183, this will was consideredby Soertsz J. It would appear that one Sempo, a son of Eliza, hadpredeceased his mother Eliza leaving certain heirs. Soertsz J. said :“ I agree with the learned trial Judge that the will …. createda fidei commissum, but I do not agree that because Sempo predeceasedhis mother Eliza his heirs could take nothing. The will states quiteclearly that on the death of either Eliza or her husband David Obeysekera,the property should vest in the survivor of them and their children.David died before Eliza, and therefore Eliza and her children becameentitled to the property ”. What that means is that, in the opinion ofSoertsz J., on the death of David the title vested in the survivor Elizaand her children in the year 1895. Soertsz J., however, did not considerit necessary to consider this question any further because “ the plaintiffswho are the widow and children of Sempo, have quite clearly on theadmission made in the case lost whatever interest they had in consequence-of the prescriptive title acquired by the defendant who bought theproperty at a sale held in 1899 in the course of administration of David’sestate and who has been in possession since ”. That decision wouldappear to be adverse to the contention now advanced on behalf of theplaintiffs-appellants, but Soertsz J. really decided that case on theadmissions made at the trial.
In Saibo v. Jayawardena2 the same will came up for considerationbefore Keuneman J., who held that the decision of Soertsz J. was notres judicata because there was no issue raised between the present plaintiffsand the present defendant in the case decided by Soertsz J. Keuneman J.however pointed out that the decision of Soertsz J. “is of importancebecause it contains a decision as to the meaning of the last will, whichI should ordinarily be disposed to follow ”. Counsel who argued thatappeal had raised a new point, namely, that Soertsz J. had not takeninto account a further clause in the will in question. With regard tothat further clause Keuneman J. held that there was no imperativedirection in that further clause that the property should only devolveon the death of Eliza. He was of opinion that the words relied uponwere only added as an explanation of the direction against alienation.He did not think there was an intention to override the clear wordsoccurring earlier, and that the explanation was not accurate, or ratherwas not complete. Keuneman J. further held that had there beenany imperative force in the words of the clause relied upon, a repugnancywould have arisen in the will, but he did not think the words were intendedas an imperative direction. In the result, therefore, Keuneman J.held that the title vested on the death of David and that the defendant
114 L. J. Chan, at p. 272.
(1944) 46 N. L. R. 20.
100
DIAS J.—Jayawardene v. Wamasuriya.
had acquired title by prescription. If that decision is correct, thenobviously the contention advanced on behalf of the appellants is unsoundand must be rejected.
It has, however, been submitted that as this Court consists of a benchof two Judges it is open to us to reconsider the question de novo.
By agreement of parties the original will, which is in Sinhalese, was readto us in Court. It is to be noted, however, that that document is not theoriginal will, and is an uncertified copy. I am satisfied that the trans-lation of that will, which is the exhibit P 4, is substantially an accuratetranslation of the Sinhalese. The relevant words are as follows :—
“ That during my lifetime I may possess according to pleasureail the movable and immovable property belonging to me and dowhatever I may please with them, and that after my demise my onlygrand-daughter Eliza Weerasinghe Obeyesekera (provided she getschildren and one of those children be living) and her husband DavidEerdinandus Atadahewatte Obeyesekera Mudaliyar of Tangalla shouldinherit all my said movable and immovable property ; but in case mysaid grand-daughter Eliza Weerasinghe Obeyesekera be not blessed,with any children, or after getting children none of them shouldsurvive and she happens to die, then her husband David FerdinandusAtadahawatte Obeysekera Mudaliyar should inherit a just £ shareof all the property which they inherited from me, and my brothersand sisters or their descendants should inherit the remaining § sharesin such proportionate shares as they are entitled to by law.
That in case the said two persons, Eliza Obeysekera my grand-daughter, and David Ferdinandus Atadahewatta Obeysekera, herhusband, be blessed with children, and whilst such children are livingboth or one of them should die, my relations will not be entitled to theabove-mentioned § shares which was allotted to them, but that thesame should devolve on any one of the said two persons that may beliving and their children.
That as (nissa) the devolving according to the above devises of themovable and immovable property belonging to me is to occur onlyafter and not until the demise of Eliza Weerasinghe Obeysekera, noneof the property (movable and immovable) belonging to me may bemortgaged, sold, gifted, or given away in any other manner by herthe said Eliza Weerasinghe Obeysekera or her husband David Ferdi-nandus Atadahewatte Obeysekera Mudaliyar or any other person,or be subject to the debt or writ of execution of any body, and besold on such account during the life time of the said Eliza WeerasingheObeysekera.”
With great respect I am unable to agree with the view expressed inSaibo v. Jayaioardene x, that this clause is not an imperative direction thatthe property should only devolve on the death of Eliza or that thisclause is repugnant to the words which preceded it. Applying theprinciples which I have already referred to, the will must be construedas a whole and apparent contradictions must be reconciled if possible,and the intention of the testator must be ascertained by a perusal of the-
1 (1944) 46 N. L. B. 20.
BASNAYAKE J.—Jayawardene v. Wamaouriya.
101
whole will. Any apparent inconsistent clause or words, whether standingfirst or last, should be sacrificed to the true intention of the testatorwhich is manifest on a reading of the whole will. Applying that principleit seems to me to be quite clear that the words “ the same should devolveon any one of the said two persons that may be living and their children ”must be qualified by the later clause in which the testatrix clearly indicatesthat the foregoing devise is to occur only after and not until the death ofEliza. That being so I am of opinion that the title of the plaintiffsonly came into existence on August 29, 1933, that is, within ten yearsof the filing of this action, and that therefore the defendant has notacquired a title by prescription.
therefore, would allow the appeal and enter judgment for the plaintiff'sfor the damages agreed on at Rs. 50 per annum with costs both hereand below.
Basnayake J.—
I have had the advantage of perusing the judgment of my brotherDias, and I am in entire agreement with the order proposed by him.As our construction of the will in question is at variance with the opinionexpressed by two eminent Judges of this Court I think I should saymore than record my bare concurrence with the judgment of my brother.
This is an action instituted on 10th January, 1943, in respect of twoadjoining allotments of land situated at Siyambalagoda in the WestGiruwa Pattu of the Hambantota District, known as Ihala DarandaKumbura and Wilakumbura alias Wilmulla, of a total extent of 14 acres2 roods 6 perches valued for the purpose of this action at Rs. 2,000.
The plaintiffs are thirteen in number. The first plaintiff is the daughterand the other plaintiffs are the grand-children of Eliza Obeysekera whodied on August 29, 1933. They claim the land by devolution from thesaid Eliza Obeysekera and seek to obtain an order declaring them entitledto this land, ejecting the defendant therefrom, and mesne profits atRs. 100 per annum for the three years preceding the date of action. Inthe course of the trial which proceeded mainly on admissions and argu-ments-of counsel it was agreed that the amount of mesne profits shouldbe Rs. 50 per annum. No oral' evidence was recorded, but certaindocuments on which the parties relied were tendered by counsel.
The defendant resists the action on the ground that he is entitled to thelands by right of purchase from the true and lawdul owners and also byright of prescriptive possession. He traces his title through one DonJuwanis who purchased these lands in 1900 from Eliza Obeysekera (D 1).Don Juwanis’ heirs conveyed them in 1919 (D2)to Simon Silva who soldthem to this defendant .in 1932 (D 3).
It is admitted that one Dona Johana Ekanayake was at one time theowner of these lands and that she executed a last will bearing No. 5,321of September 23, 1874, admitted to probate in D. C. Tangalla Testa-mentary case No. 209, in which she left all her property to her grand-daughter Eliza Obeysekera and her husband David Obeysekara subjectto certain stipulations which will be discussed later. Of these personsthe former lived till August, 1933, while the latter died in 1895.
102
BASNAYAKE J.—Jayawardene v. Wama&uriya.
Twenty issues were suggested at the trial. The judge held in favourof the defendant and dismissed plaintiff’s action holding that the defendantwas entitled to the land in dispute both by right of purchase andprescriptive possession.
The main question argued at the hearing of this appeal was whetherany part of the property dealt with under the will of Dona JohanaEkanayaka was alienable during the lifetime of Eliza Obeysekara.
The will under consideration reads as follows :—
“ I, the signor hereof, Dona Johana Ekanayake Lama Etani, widowof Don Andiris Wijegunawardene Wijesinghe Muhandiram, late ofNalagama, being at present though old and infirm in the full possessionof my sound mind and senses, do hereby declare to have caused withoutthe compulsion or persuasion of any body this my last will to be madewith my free will in the following manner, viz. :—
I the testatrix do hereby wholly abrogate any such Last Willor Testament as had been caused to be made prior to this by me.
Whereas I, the testatrix, am entitled to (so that I may dowhatever therewith according to pleasure) all the property belongingto the estate by virtue of the joint will caused to be made touchingthe same by me and the above-named Muhandiram and filed in theTestamentary Case No. 105 of the District Court of Tangalla thefollowing are therefore the devises I make by this Testament regard-ing the said property as well as the movable and immovable propertywhich I have since acquired and may hereafter acquire, viz. :—
That during my lifetime I may possess according to pleasureall the movable and immovable property belonging to me and dowhatever I may please with them, and that after my demise myA only grand-daughter Eliza Weerasinghe Obeysekera (providedshe gets children and one of those children be living) and herhusband David Ferdinandus Atadahewatte Obeysekara Mudaliyarof Tangalla should inherit all my said movable and immovableproperty, but in case my said grand-daughter Eliza WeerasingheObeysekara be not blessed with any children, or after gettingchildren none of them should survive and she happens to die,B then her husband David Ferdinandus Atadahewatte ObeysekeraMudaliyar should inherit a just £ share of all the property whichthey inherited from me, and my brothers and sisters or theirdescendants should inherit the remaining § shares in suchproportionate shares as they are entitled to by law.
That in case the said two persons, Eliza Obeysekara, my grand-daughter, and David Ferdinandus Atadahewatte Obeysekara,her husband be blessed with children, and whilst such childrenC are living both or one of them should die, my relations will not beentitled to the above-mentioned f shares which was allotted tothem, but that the same should devolve on any one of the saidtwo persons that may be living and their children.
That as the devolving according to the above devises of themovable and immovable property belonging to me is to occuronly after and not until the demise of Eliza Weerasinghe Obey-sekara none of the property (movable and immovable) belonging to
BASNAYAKE J.—Jayawardene v. Wamasuriya.
103
D me, may be mortgaged, sold, gifted, or given away in any othermanner by her, the said Eliza Weerasinghe Obeysekara, or herhusband David Ferdinandus Atadahewatte Obeysekara Mudaliyaror any other person, or be subject to the debt or writ of executionof anybody, and be sold on such account during the lifetime ofthe said Eliza Weerasinghe Obeysekara.
That a list of the property at present belonging to me at presentis hereto annexed.
That in order to carry out according to my wishes the devisescontained in this testament, which I the abovenamed Don JohanaEkanayake Lama Etani have caused to be made, I do appointMessrs. David Ekanayake Secretary Mudaliyar of the DistrictCourt of Tangalla and the abovenamed David FerdinandusAtadahe watte Ote -sokara Mudaliyar as executors.
Thi3 Last Will or Testament having thus been caused to bewritten is signed by me, the first-named Dona Johana EkanayakeLama Etani, on this 23rd day of September, 1874, at my residinghouse.”
Clauses A and B provide that David Obeysekara should if he survivesget of all the property in the event of Eliza Obeysekara dying childlessor with no surviving children. Similarly the bequest of § to the brothersand sisters of the testatrix does not come into operation if Eliza Obey-sekara has children surviving her. As David Obeysekara diod in 1895while Eliza Obeysekara was alive clause B of the will never becomeoperative, and the occasion for the division of the property contemplatedtherein never arose. Clause C is a mere elaboration of clause B that thedevolution of the property as prescribed therein is not to take place incase Eliza Obeysekara has children surviving her. The occasion for theoperation of this clause too never arose as the condition precedent to itsoperation, viz., Eliza Obeysekara dying childless or with no childrensurviving never came into existence. Clause D is designed to placebeyond doubt the intention of the testatrix which runs through everyclause of the will that no part of the property devised by her is to passuntil the death of Eliza Obeysekara.
In short the will reduces itself to this. I leave all my property toEliza and David Obeysekara and their children : provided that no partof it shall pass to the children or to the others designated in the will in.the absence of surviving children until the death of Eliza who is prohibitedduring her life from selling, mortgaging, or alienating any part of theproperty whatsoever. If Eliza dies childless or with no children survivingher and her husband is then alive •§ of the poperty is to go to him and| to the brothers and sisters of the testatrix.
The cardinal principle in construing a will is to ascertain therefromthe true wishes of the testator and give effect to his intention, conflictingprovisions, if any, being reconciled as far as possible in accordance withthe true intent of the testator.
On a proper construction of this will I cannot escape the conclusion,that the testatrix intended that no part of the property movable and.immovable should pass under the will or be in any way encumhered or
104
BASNAYA K K J.—Jayawardene v. Wamaeuriya.
alienated during the life of Eliza Obeysekera. I can find no authorityfor the construction that on David Obeysekara’s death during the life-time of Eliza Obeysekara -J of the devised property would pass to thechildren free of all restraints against alienation.
With great respect I find myself unable to share the view taken byKeuneman J. in regard to Clause D of the will, the original of whichI have examined carefully. Even the translation P 4 which the appellantsclaim is superior to the translation filed in D. C. Tangalla Testamentarycase No. 209 does not bring out its full force, which when renderedliterally reads as follows :—
“ Further, because my movable and immovable property will passaccording to the above directions only after the demise of the above-named Eliza Obeysekara it is hereby enjoined that no part whatsoeverout of all my movable and immovable property shall, except afterthe death of Eliza Obeysekara and not while she is alive, be mortgaged,sold, gifted or disposed of in any other manner by the said Eliza Obey-sekara or her husband or sold in execution or permitted to be seizedor sold in execution for the debt of any one whomsoever.”
Counsel for the respondent contended that this clause did not operateas a prohibition against alienation. He based his contention on theword “ (nisa) 2fksj ” occurring in the original and claimed that it canonly refer to a prohibition imposed earlier in the instrument. As therewas no such earlier prohibition he said that the clause was ineffective.
I am unable to reconcile this argument with the precise language ofthis clause. It was also suggested that the prohibition was bad as it wasa nude prohibition and no penalty for its disobedience had been stated.The failure to impose a penalty does not affect a prohibition made in awill such as this where the clear intention is to benefit the children(Sande—Webber’s translation Ch. IV. section 3, p. 206). The learnedtrial Judge has made a point of the fact that the lands in question weresold with the authority of court and with the knowledge of the plaintiffsto defray David Obeysekara’s testamentary expenses. These circum-stances do not validate the sale contrary to the prohibition. Sande’sopinion on this question is quite definite. He says :
“ But if the prohibition is founded on some good ground (justarncausam habeat)—if , for instance, the testator wishes thereby to providefor his children, his descendants, or his family, &c.—such prohibitionis sanctioned by law, and is effective, and is generally thought to be so.valid that if anything is done contrary to it, and the property is alienatedby the heir or legatee, the alienation is not valid, no is the dominiumtransferred ”.
The authority of the Court given in the testamentrary proceedings doesnot give the sale any validity (Sande—Webber, p. 316). It is only adisposition under the authority of the Entail and Settlement Ordinancethat can pass title.
For the reasons I have given I am of opinion that the plaintiffs areentitled to succeed in their action.
Appeal allowed,